THE CONSTITUTIONAL ASPECTS OF THE 
"PARSON'S CAUSE" 



ARTHUR P. SCOTT 



;KPR1NTKD FROM POLITICAL SCIENCE QUARTERLY 
Vol.. XXXI, No, 4, December, 1916 



NEW YORK 

FUBLISHKD BY GINN & COMPANY 

lu t6 



THE CONSTITUTIONAL ASPECTS OF THE 
"PARSOiN'S CAUSE" 



ARTHUR P. SCOTT 



REPRINTED FROM POLITICAL SCIENCE QUARTERLY 
Vol. XXXI, No. 4, Decembkr, 1916 



NEW YORK 

PUBLISHED BY GINN & COMPANY 

1916 



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,1; 



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'b^ 



THE CONSTITUTIONAL ASPECTS OF THE 
" PARSON'S CAUSE " ' 

OF the various important trials and lawsuits during the 
colonial period few have attracted more attention from 
the general historian than the cases growing out of 
the Virginia Two-Penny Act of 1758. Particularly since the 
appearance of the Life of Patrick Henry, by Wirt, Henry's 

'Bibliography: Sources. 

Perry, W. S., Historical Collections Relating to the American Colonial Church: 
Virginia. Gives many important letters 1755-1769, chiefly from Virginia Clergy to 
the Bishop of London. 

Briefs of John Camm, plaintiff and appellant, and Hansford and Moss, defendants 
and respondents, before the Privy Council. A transcript from these briefs (from 
British Museum Additional Manuscripts, no. 36220, folios 52-64) is in the Library of 
Congress, Hardwicke Papers, vol. 872, pp. 201-279. References in this article are 
to the transcript. 

Fontaine, J. (A. Maury, editor) Memoirs of a Huguenot Family, pp. 418-424. 
This gives Maury's account of Patrick Henry's speech. 

Journals of the Virginia House of Burgesses, (H. R. McElwaine and J. P. Ken- 
nedy, editors), 1 758-1 761, p. 285. 

Hening, W. W. The Statutes-at-Large. This is a collection of all the laws of 
Virginia. 

Carter, Landon. A Letter to the Bishop of London (1759); The Rector Detected 
(1764). 

Bland, Richard. A Letter to the Clergy of Virginia (1760); The Colonel Dis- 
mounted (1764). Reprinted in part in the William and Mary Quarterly^ vol. xix, 
pp. 31-41. 

Camm, John. A Single and Distinct View (1763); A Review of the Rector De- 
tected (1764). The pamphlets of Bland, Carter and Canmi are summarized in the 
Report of the Virginia State Library, 1909. 

Letter of Virginia Assembly to their Agent (1759), in Virginia Magazine of His- 
tory, vol. X, pp. 347-356. 

Secondary accounts: 

Henry, Wm. Wirt. Patrick Henry: Life, Correspondence and Speeches, vol. i- 

Morgan, George. The True Patrick Henry. 

Tyler, Moses Coit. Patrick Henry. 

Wirt, Wm. Sketches of the Life anc", Character of Patrick Henry (4th edition). 

Campbell, Chas. History of the Colony and Ancient Dominion of Virginia. 

Meade, Wm. Old Churches, Ministers, and Families of Virginia. 

Tyler, Leon G. "The Two Penny Act," in IViliiam and Mary Quarterly, vol. x, 
pp. 10-30. 

Howard, George E. Preliminaries of the Revolution, pp. 87-101. 
558 



THE PARSON'S CAUSE 



559 



speech in the " Parson's Cause " has been commonly regarded 
as a prophecy of the Revokition, " the first intimation of the 
approaching conflict." ' It is thus linked with James Otis's 
argument in the Writs of Assistance case, when, as John Adams 
would have it, American independence was born. A somewhat 
uncritical acceptance of the enthusiastic estimates of Wirt and 
Adams later resulted in an exaggerated idea of the importance 
attached to these speeches at the time. Wirt himself shows 
clearly that when Henry went to Williamsburg the next year 
" no one knew anything of him." '' 

A wider study of contemporary material has resulted in a 
better appreciation of the real legal, constitutional and social 
issues involved in the whole Two-Penny-Act controversy, a 
controversy in which Henry's speech in Parson Maury's case 
was but a single incident, and not the most important one. 
Eckenrode, for instance, has brought out the connection of this 
agitation with the whole movement against the established 
church, culminating in the Revolutionary separation of church 
and state.3 L. G. Tyler, in an excellent article in which he 
comments particularly on the determination of the Virginia 
Assembly to exercise complete control over local taxation, has 
shown that the underlying question was " the Virginia Consti- 
tution under the British Sovereign." ^ Some important aspects 
of the case, however, have been generally ignored. Even when 
the technical points of law involved have been correctly stated.s 
they have not been sufficiently emphasized. The far-reaching 
constitutional questions involved have thus been obscured, or 
at best have been stated without further elaboration.^ 

'Cooke, Virginia, p. 378. Cf. Campbell's Virginia, p. 518: " Henr>''s speech 
. . and the verdict . . . in a certain sense . . . the commencement of the Rev- 
olution in Virginia." See also Appleton's Cyclopedia of American Biography article, 
Henry. , 

2 Wirt's Life of Henry (4th ed.), p. 76. 

^ Report of the Virginia State Library, 1909-10 (Separation of Church and State. 
Special Report of Dept. of Archives and History). 

* IVm. and Mary Quarterly, vol. 19, p. 25. 

*As in Henry's Henry, I, 34. 

"The best accounts are in Tyler's article, Henry's Henry, and Howard's Pre- 
liminaries. 



t;6o 



POLITICAL SCIENCE QUARTERLY [Vol. XXXI 



The outstanding facts in the controversy are too familiar to 
call for more than a brief restatement. By an Act of Assembly 
of 1748, confirmed by the King in 1751, the salary of the Vir- 
ginia clergy was fixed at 16,000 pounds of tobacco a year.' By 
an Act of 1753, however, two counties were ordered to pay 
;;^ioo in Virginia currency instead."" In June 1 75 5 the assembly 
permitted two counties to pay tobacco levies in money, at a 
rate to be fixed by the justices of the peace.3 Later in the 
same year a threatened shortage in the tobacco crop led to 
the enactment of a law, to expire at the end of ten months, 
allowing the payment in money of all tobacco debts at the rate 
of two pence a pound."* Some of the clergy protested vigor- 
ously at the time, even appealing to the Bishop of London, but, 
as it turned out, two pence was not far from the market value, 
and the matter was not pressed.^ In 1758, however, another 
threatened crop-failure led to a popular demand for relief. 
The assembly responded on October 12th by providing that 
all debts, public and private, contracted on a tobacco basis, 
might if the debtor so desired be paid in currency at the rate 
of two pence a pound. The act was limited in operation to a 
year.* Since the market price of tobacco rose to about six 
pence, debts were naturally paid for the most part in currency. 
The merits or demerits of this act as a piece of legislation 
are not relevant to the present discussion. It has been exten- 
sively denounced ; but a very plausible argument can be made 
fout for its justice and expediency as an emergency measure. 
iThe important point is that the clergy, rightly or wrongly, felt 
fparticularly defrauded ; for, while the act was general in terms, 
they were the greatest proportional losers. ^ As a body they 
sent Rev. John Camm to lay their grievances before the King 
in Council. The Bishop of London supported their cause, and 
on the recommendation of the Lords of Trade, the King on 
August 10, 1759, disallowed not only the act of 1758 but those 



' Hening, VI, 88. 
'Hening, VI, 502. 
» Perry, pp. 434, 440, 447. 
'Perry, p. 442. 



^Hening, VI, 369. 
^Hening, VI, 568. 
•Hening, VII, 240. 



No. 4] THE PARSON'S CAUSE ^61 

of 1753 and 1755 also. The disallowance was not, however, 
officially published in Virginia until June 27, 1760, eight 
months after the law of 1758 had expired by limitation.' 

Meanwhile many of the clergy had refused the tender of 
currency as the equivalent of their full salaries, and several 
ministers now proceeded to sue the tax collectors of their par- 
ishes to recover the full market value of the tobacco due under 
the act of 1748. The collectors set up the law of 1758 as their 
; sufficient justification for having refused to pay in tobacco, and 
; the issue was squarely joined. The crucial question was per- 
fectly clear: In May of 1759, when salaries for 1 75 7-8 were 
due, was the enactment of October 12, 1758 a valid law of Vir- 
ginia, as the legislature had obviously intended it should be? 
The litigation dragged on for six or seven years, accompanied 
by an acrimonious war of pamphlets and public letters in which 
I the issue was threshed-out from every angle. The clergy were 
I uniformly unsuccessful in the courts, and naturally they felt 
aggrieved. 

Following the lead of Wirt,^ later writers have almost unan- 
imously agreed that the clerg}- had the law all on their side, 
and that they were defeated only by an appeal to prejudice. 
The refusal of judges and juries to decide in their favor has 
been interpreted as a bold act of defiance on the part of the 
colonists, foreshadowing Revolution. 3 This view assumes as a 
matter of course that the disallowance of a law might be, and 
in this case was, retroactive, thus invalidating all action taken 
in accordance v/ith that law's provisions. ■» Such an assumption 
is entirely unwarranted. Ever since the Crown began the prac- 

' Perry, pp. 458, 460, 464. Carter and Bland, however, say that many of the 
clergy acquiesced in the law. Carter's Letter, p. 51. 

2 " The clergy had much the best of the argument. The king in his council took 
up the subject, denounced the act of 1758 as an usurpation, and declared it utterly 
null and void." Wirt's Henry (4th ed.), p. 40. 

^Meade, Old Churches, I, 217; Hawks, Ecclesiastical Contributions: Virginia, 
p. 118; Campbell, pp. 514, 518. 

♦Bancroft (last ed.) HI, 65; Cooke, Virginia, p. 381; Morgan, True Patrick 
Henry, p. 61; Grahame, History of the United States (1845) IV, 96, 98. Campbell 
admits the repeal was not " retrospective." Channing, United States, HI, 8; Howard, 
Preliminaries, p. 98. 



562 POLITICAL SCIENCE QUARTERLY [Vol. XXXI 

tice of reviewing colonial legislation, in the later 17th century,' 
it had been absolutely clear that disallowance took effect only 
from the moment when it was announced officially in the 
colony. All action taken under a law before the proclamation 
of disallowance was valid. In other words, a disallowance was 
the exact equivalent of a repeal, and the two words were used 
interchangeably.^ Since the machinery of disallowance was 
slow moving, an objectionable law might have several years of 
life before it could be annulled. To prevent this, royal gov- 
ernors were instructed to refuse assent to certain general types 
of laws unless a clause was inserted suspending their operation 
until they could be reviewed in England.^ 

Inasmuch as the law of 1758 had expired before Virginia 
was notified of its disallowance, unbroken precedent seemed to 
demand that the Virginia judges should regard it as having 
been in full force and effect in the spring of 1759. Prima facie, 
the clergy had no case whatever. Nothing daunted, they boldly 
attempted to differentiate this case from an ordinary disallow- 
ance, arguing that the act of 1758, although it had the form of 
a law, had never been binding at all. The original validity of 
the Two-Penny Act was questioned on two general grounds. 
It was pointed out in the first place that the king's instructions 
to the governor specifically restrained him from assenting to 
any amendment to existing legislation unless the amending act 
contained a suspending clause. Since the act of 1758 contained 
no such clause, it was urged that the governor's commission 
and instructions 

' As earlv as 1638 Virginia laws were heing sent to England for examination (Cal- 
endar of State Papers, Colonial Series, 1574-1660, pp. 245, 268) but none appears 
to have Ijcen disallowed before the time of James II. In October, 1680, a clause was 
"excepted" by the king (Calendar Stale Papers, Colonial Series, 1661-1668, p. 
II). In 1687 the assembly denied the king's right of repealing a law by proclama- 
tion. Bruce, Institutional History, I, 497. Only after the reorganization of the 
Board of Trade in 1696 was supervision really systematized. 

^ In 1752 the assembly declared : " As we conceive, according to the ancient con- 
stitution and usage of this colony, all laws enacted here . not repugnant to the 
laws and statutes of Great Britain, have always been taken and held to be in full 
force, until your Majesty's disallowance thereof is notified here." Hening, V, 435, 
note. Dickerson, American Colonial Government, p. 226. 

* Greene, E. P., Provincial Governor, p. 163; Provincial America, p. 53. 



No. 4] THE PARSON'S CAUSE ^63 

did not sufficiently authorize and impovver the Governor, with the Con- 
sent of the Council and General Assembly to make the said Act . . . 
but the said Act, as it tended to suspend the Force and Effect of the 
Act of Assembly ... [of 1748] . . . which had received his Majesty's 
Approbation, was contrary to his Majesty's Instructions to his Gover- 
nor, and was therefore null and void from the making thereof, and so 
declared by the late King by his Order in Council.' 

In the second place, the act was said to be " void in itself, being 
contrary to the principles of justice." - 

The issue thus brought before the courts was entirely new. 
Numerous instances had occurred in which royal governors in 
Virginia and other colonies had assented to laws in direct vio- 
lation of their instructions. Occasionally such laws had been 
confirmed by the king, but usually they had been disallowed* 
particularly when they amended existing laws which had re- 
ceived formal ratification. The king had signified his " high 
displeasure" to the governors, and had threatened recall in case 
instructions were not better obeyed. 3 But never before had 
the question been raised of the validity of such laws up to the 
time of their disallowance. When laws, as was sometimes the 
case, were disallowed after they had expired by limitation, it 
was simply by way of expressing emphatic disapproval, with a 
view to preventing similar action in the future. There seems 
to have been no expectation that action already taken under 
these laws would be invalidated by their disallowance. On the 
contrary, the fact that such laws were in full force, no matter 
how clearly the governors had violated instructions in signing 
them, was regarded as a grave danger.'' No remedy however 
seems to have suggested itself except to reiterate threats and 

' Camm's Brief, p. 214. ( Ilardwicke Papers, vol. 872, Transcript Lib. of Cong. ). 
cf. Campbell, p. 512. 

"Respondents' Brief, p. 267. 

■'Massachusetts Acts and Resolves, II, 127. 

*The Board of Trade complain (1754) of the practice "which is become too 
frequent in Your Majestys Colonys, of passing Laws of a nature not warranted by 
Your Majestys Instructions, which take immediate effect, and continue in Force till 
your Majestys Pleasure be signified to the contrary." (Acts of the Privy Council of 
England, Colonial Series, Y, 251). 



566 POLITICAL SCIENCE QUARTERLY [Vol. XXXI 

and juries hesitated and disagreed. In no instance did a clergy- 
man recover the balance of salary for which he was suing ; but 
the five recorded suits, with their various appeals, show striking 
differences. 

The first case to come to actual trial was that of the Rever- 
end Alexander White, before the King William County Court, 
in August, 1762. At the request of the Parish Collectors, 
Governor Fauquier sent the original copy of the disallowance 
order of August, 1759, together with former disallowances for 
purposes of comparison. It was a matter of common know- 
ledge that the Governor regarded the order respecting the Two- 
Penny Act as an ordinary dissallowance. " The court took 
the hint, " and instructed the jury that in their opinion the Act 
of 1758 had been valid, since word of its repeal had come only 
after it had expired. The court left the final decision of this 
question of law to the jury. Counsel for White urged the dis- 
tinction between the repeal of a law under which no action had 
in fact been taken, and the disallowance of an act which had 
already had its full effect. The omission of the word " repeal" 
in the Council's order was emphasized ; and the inherent injus- 
tice of the measure was pointed out, but all to no effect. The 
jury found for the Parish Collectors, and White could only ap- 
peal to the General Court.' 

The Reverend Thomas Warrington had brought suit even 
before White, but the case came up before the York County 
Court somewhat later. This time, the jury awarded substantial 
damages against the Collectors. The justices, however, held 
that the law of 1758 had been valid, and refused to allow the 
judgment to be entered up. Warrington also appealed to the 
General Court. "" 

A third suit was that started April i, 1762, by the Reverend 
James Maury, in the Hanover County Court. Counsel for the 
Collectors set up the act of 1758 in bar. The plaintiff de- 
murred, insisting that this law had never been binding, 

'Authority for this Irial is the letter in Perry, pp. 479-82. 

^ Perry, p. 496; Henry's Henry, I, 34, Campbell, p. 514, says the suit was in 
Elizabeth City County. 



No. 4] THE PARSON'S CAUSE 567 

and on November 5, 1763, the court sustained the demurrer. 
This was the first and only time that the Two- Penny Act was 
judicially declared invalid, because outside the competence of 
the legislature. It was before a special jury at the December 
court, called to fix the amount of the damages, that Patrick- 
Henry made his incendiary speech, and secured a verdict of 
one penny against his clients. It is quite true, as is frequently 
pointed out, that technically Henry had no business to argue 
the law in the case. The court had ruled on the law, and the 
only question before the jury was the amount due Mr. Maury. 
The further conclusion that Henry had no law on his side is an 
entirely different matter. While his attack on the established 
clergy was entirely gratuitous and irrelevant, his argument that 
" the act of 1758 had every characteristic of a good law" was 
perfectly sound. As to his contention that " a King by disal- 
lowing Acts of this salutary nature, from being the father of his 
people degenerated into a Tyrant, and forfeits all right to his 
subjects' obedience," it seems probable that the reference was 
not to ordinary disallowances at all. The real issue was the 
alleged right of the king to declare a law void from its inception, 
a right hitherto never heard of in Virginia. However inflamma- 
tory Henry's language may have been, the position which he 
was defending was essentially the conservative one. Again the 
disappointed parson could only appeal.' 

In 1764, the Reverend Patrick Henry, the orator's uncle, 
started suit in Hanover County. This continued until the 
General Court had passed on the fundamental issues involved, 
and was then dismissed.' 

In all the litigation, however, the crucial case was the one 
instituted in behalf of the Reverend John Camm. Since his 
parish was in Williamsburg, suit was brought originally in the 
General Court, October 10, 1759. The court, it would seem 
deliberately ,3 delayed a decision, and the proceedings dragged 

'On Maury's Case: Fontaine, (ed. A. Maury) Memoirs of a Huguenot Family, 
p. 419, {rives Maury's letter to Camm. Wirt's Henry is based on testimony of per- 
sons present, but given years later. Henry's Henry uses all material available. 
Robinson's letter in Perry, p. 497 ff., is based on Maury's letter to Camm. 

'Henry's Henry, I, 45. M'erry, p. 475. 



568 POLITICAL SCIENCE QUARTERLY [Vol. XXXI 

along until April lO, 1764, when by a vote of five to four the 
Act of 1758 was upheld, and judgment was given against Camm. 
Two members of the court refused to vote, on the ground that 
they were Camm's parishioners.' The Governor, who needed 
to vote only in case of a tie, publicly expressed his approval of 
the decision.' 

Camm appealed to the Privy Council. In this of course he 
was fighting the cause of all the ministers. The assembly, in 
turn, realizing the extent to which their legislative independence 
would be curtailed by an adverse decision, undertook the ex- 
pense of defending the Collectors.^ The case was referred to 
a Committee of the Privy Council, and there argued at length. 
In accordance with the Committee report, the Council dismissed 
Camm's appeal. The decision was not at all on the merits of 
the case, but on the technical ground that the original suit 
should have been brought as an action of debt instead of tres- 
pass upon the case. It was generally understood that this was 
a mere pretext for evading the issue. Presumably it was re- 
garded as highly inexpedient to risk offending colonial opinion, 
already dangerously excited over the Stamp Act controversy.'* 

The General Court of Virginia calmly accepted this technical 
victory as a complete vindication of their position, and dismissed 
the pending appeals of White, Warrington and Maury. ^ Nat- 
urally enough, the clergy were bitterly disappointed, and talked 

' The two Mr. Nelsons. One at least was thought to favor the clergy's positif)n. 
(Perry, pp. 495, 514). Probably they were glad to escape the responsilnlily of vot- 
ing. Meade, Old Churches, I, 218, thinks both favored the clergy. On the case 
before the General Court see, further, Camm's Brief and Respondents' Brief; Camp- 
bell, p. 512; Perry, pp. 495, 496. 

2 Perry, pp. 495, 513. 

s Perry, p. 475. 

*From the Acts Privy Council, Colonial, IV, 699. The date would seem to be 
1765; the Briefs as printed were for 1765, but one is altered to 1766; from letters in 
l''erry, pp. 520, 524 the date of final action by the Council appears to have been 1767. 
On Privy Council's action, see Perry, pp. 525-30; and mss. endorsement on Respon- 
dents' Brief: " Judgment affirmed for the Respondents (the action being miscon- 
ceived) . . . No determination, as to the disallowance of the Act of Assembly 1758, 
w[hethe]r it avoided the act ab initio, nor whether it was void in Law as being 
against natural Justice." 

"Perry, pp. 527, 530. 



No. 4] THE PARSON'S CAUSE ^69 

for several years of renewing the contest in the courts, but 
nothing definite was done, and the whole matter was lost sight 
of in the excitement of new issues." 

On the basis of the arguments in these different suits, supple- 
mented by contemporary letters and pamphlets, it is possible 
to summarize the opposing views as to the validity of the Two- 
Penny Act, as follows. 

Against the original validity of the Act it was urged : (a) 
that the legislature of Virginia, owing its very existence to the 
royal prerogative, was not an independent but a subordinate 
body. It had only such powers as the king chose specifically 
to confer, and it was strictly subject to such limitations as he 
saw fit to impose.^ Certain of these limitations were expressed 
in the governor's commission, in the clause which authorized 
him to pass certain laws with the consent of the assembly. 
Thus, laws should not be repugnant to those of England, and 
they must be submitted promptly to the king for approval or 
disallowance.3 But the governor's commission also referred 
him to his instructions, " and consequently such instructions 
are, by such reference, incorporated with and made Part of the 
Commission." ^ 

(b) The sixteenth article of the governor's instructions for- 
bade him to sign any " Act for repealing any other passed 
within the Colony whether the same had or had not received 
the Royal Approbation, unless a Clause was inserted . . . sus- 
pending . . . the Execution thereof until his Majesty's Pleasure 
should be known." ^ 

(c) The assembly had long known of this restriction, and 
had recognized that it was binding on them as well as on the 
governor; for in 1752 they had formally and specifically ad- 
mitted that a law once confirmed '• cannot by the legislature 
here be revised, altered, or amended" without a suspending 
clause.^ They therefore had petitioned for a modification of 

' Perry, pp. 524, 530. '- Perry, p. 515. ' 

^Camm's Brief, pp. 211-212. ''Ibid., p. 220; Perry, p. 512. 

''Quoted in Camm's Brief, pp. 217-218. 

*Hening, V, 435, note; Camm's Brief, p. 222. 



568 POLITICAL SCIENCE QUARTERLY [Vol. XXXI 

along until April lO, 1764, when by a vote of five to four the 
Act of 1758 was upheld, and judgment was given against Camm. 
Two members of the court refused to vote, on the ground that 
they were Camm's parishioners.' The Governor, who needed 
to vote only in case of a tie, publicly expressed his approval of 
the decision.^ 

Camm appealed to the Privy Council. In this of course he 
was fighting the cause of all the ministers. The assembly, in 
turn, realizing the extent to which their legislative independence 
would be curtailed by an adverse decision, undertook the ex- 
pense of defending the Collectors.^ The case was referred to 
a Committee of the Privy Council, and there argued at length. 
In accordance with the Committee report, the Council dismissed 
Camm's appeal. The decision was not at all on the merits of 
the case, but on the technical ground that the original suit 
should have been brought as an action of debt instead of tres- 
pass upon the case. It was generally understood that this was 
a mere pretext for evading the issue. Presumably it was re- 
garded as highly inexpedient to risk offending colonial opinion, 
already dangerously excited over the Stamp Act controversy.* 

The General Court of Virginia calmly accepted this technical 
victory as a complete vindication of their position, and dismissed 
the pending appeals of White, Warrington and Maury .5 Nat- 
urally enough, the clergy were bitterly disappointed, and talked 

' The two Mr. Nelsons. One at least was thought to favor the clergy's position. 
(Perry, pp. 495, 514). Probably they were glad to escape the responsibility of vot- 
ing. Meade, Old Churches, I, 218, thinks both favored the clergy. On the case 
before the General Court see, further, Camm's Brief and Respondents' Brief; Camp- 
bell, p. 512; Perry, pp. 495, 496. 

2 Perry, pp. 495, 513. 

» Perry, p. 475. 

■•From the Acts Privy Council, Colonial, IV, 699. The date would seem to be 
1765; the Briefs as printed were for 1765, but one is altered to 1766; from letters in 
Perry, pp. 520, 524 the date of final action by the Council appears to have been 1767. 
On Privy Council's action, see Perry, pp. 525-30; and mss. endorsement on Respon- 
dents' Brief: " Judgment affirmed for the Respondents (the action being miscon- 
ceived) . . . No determination, as to the disallowance of the Act of Assembly 1758, 
w[hethe]r it avoided the acl ab initio, nor whether it was void in Law as being 
against natural Justice." 

"Perry, pp. 527, 530. 



No. 4] THE PARSON'S CAUSE rgg 

for several years of renewing the contest in the courts, but 
nothing definite was done, and the whole matter was lost sight 
of in the excitement of new issues.' 

On the basis of the arguments in these different suits, supple- 
mented by contemporary letters and pamphlets, it is possible 
to summarize the opposing views as to the validity of the Two- 
Penny Act, as follows. 

Against the original validity of the Act it was urged : (a) 
that the legislature of Virginia, owing its very existence to the 
royal prerogative, was not an independent but a subordinate 
body. It had only such powers as the king chose specifically 
to confer, and it was strictly subject to such limitations as he 
saw fit to impose.^ Certain of these limitations were expressed 
in the governor's commission, in the clause which authorized 
him to pass certain laws with the consent of the assembly. 
Thus, laws should not be repugnant to those of England, and 
they must be submitted promptly to the king for approval or 
disallowance.3 But the governor's commission also referred 
him to his instructions, " and consequently such instructions 
are, by such reference, incorporated with and made Part of the 
Commission." t 

(b) The sixteenth article of the governor's instructions for- 
bade him to sign any " Act for repealing any other passed 
within the Colony whether the same had or had not received 
the Royal Approbation, unless a Clause was inserted . . . sus- 
pending . . . the Execution thereof until his Majesty's Pleasure 
should be known." 5 

(c) The assembly had long known of this restriction, and 
had recognized that it was binding on them as well as on the 
governor; for in 1752 they had formally and specifically ad- 
mitted that a law once confirmed " cannot by the legislature 
here be revised, altered, or amended" without a suspending 
clause.^ They therefore had petitioned for a modification of 

' Perry, pp. 524, 530. 2 Perry, p. 515. ' 

=*Camm's Brief, pp. 211-212. * /bid., p. 220; Terry, p. 512. 

'^ Quoted in Camm's Brief, pp. 217-218. 

«Hening, V, 435, note; Camm's Brief, p. 222. 



c^yo POLITICAL SCIENCE QUARTERLY [Vol. XXXI 

this very instruction, so as to allow them to pass emergency- 
amendments; ' but the King in Council, March 7, 1753, had 
declared " it was by no means advisable ... to Authorize the 
Council and House of Burgesses " to have this power.^ 

(d) But the Act of 1758 amended and partially repealed the 
Act of 1748, which had been confirmed; and it contained no 
suspending clause. Therefore the action of the assembly was 
entirely without authority, and the governor's signature was 
worthless. For acts once confirmed could not be amended by 
a lesser power than that which had established them — the joint 
action of king and assembly.^ In consequence the act in ques- 
tion was at the time of making and thenceforth null, void, and 
no law at all.-* 

(e) Accordingly, when the Virginia courts were called upon 
to choose between the essentially contradictory acts of 1748 
and 1758, it was their duty to disregard the latter as being be- 
yond the constitutional power of the legislature to enact.5 

(f) The Privy Council believed the act was originally void, 
and they expected the Virginia courts to disregard it. By 
omitting the word " repeal " from their order, they purposely 
distinguished between this instance and an ordinary disallow- 
ance.^ They declared that if the question came before them in 
their judicial capacity, they would certainly declare the Two- 
Penny Act " no law " and " void ab initio!"' 

(g) Any other view would make the disallowance utterly 
" nugatory, " since the law had expired before its disallowance 

' Hening, V, 435, note. They asserted a right, however, to amend laws not fonu- 
ally ratified. 

^Acts of the Privy Council, Colonial Series, I\', 175; a inss. copy is included in 
Camm's Brief, p. 271. 

^Camm's Brief, p. 221. In 1696 Hartwell, Blair and Chilton wrote that when 
laws are "once ratified by the King, they can only be repealed by the King and 
General Assembly." Cal. St. Papers, Col., 1696-7, p. 654. Carter and Bland admit 
that this was the general rule; Carter, Letter, p. 6; Bland, Letter, p. 18; Perry, 
pp. 465, 487. 

*^ Ibid., p. 221. 

* Perry, pp. 481, 510. 

* Wirt's Henry, p. 40; Perry, p. 481. 
'Perry, pp. 490, 510; Camm's Brief, p. 217. 



No. 4l THE PARSON'S CAUSE 571 

was known in Virginia.' But "this divests his Majesty of his 
whole Prerogative, for by this Means the Assembly, by annual 
temporary Acts, which cannot be disallowed here till they are 
expired, might elude all the Acts which have received the 
Royal Confirmation." This would involve a radical change in 
the British constitution, and would be a dangerous step towards 
" civil independency." - 

(h) There are precedents for such action by the courts; in 
particular, " the Privy Council, on hearing an Appeal between 
VVinthrop and Lechmore \_sic'] from Connecticut, 1727, judici- 
ally declared two Acts of Assembly passed in that Province 
void." -'' 

(i) But entirely apart from all these considerations, " the 
Council and Assembly cannot make Laws like this of 1758, re- 
pugnant to Reason, and fundamentally unjust." Lord Hard- 
wick, of the Council, and for twenty years Lord Chancellor, had 
declared the law invalid " from its manifest Injustice, if there 
had been no other Objection to it."'* The law was "contrary 
to natural Justice & Equity," and therefore void, since it was re- 
troactive, depriving the clergy of a part of the salary which 
they had already earned in 1757-8. This was "to sap the 
foundations of property." "^ 

In defense of the validity of the act it was contended : (a) 
that as free-born English subjects, Virginians " must necessarily 
have a legal Constitution, that is, a Legislature, composed in 
part, of the Representatives of the People, who may enact laws 
for the internal Government of the Colony."^ "From the 
nature of the English Constitution, it is evident that the Legis- 
lature of the Colony have a right to enact any Law they shall 
think necessar}^ for their internal Government." ^ From the 
fundamental principles of the " Constitution [an] Act must 
have the force of Law, when passed by the Governor."^ This 

'Camm's Brief, p. 222; Perry, p. 516. '■'Perry, p. 511. 

'Camm's Brief, p. 221. ^ Ibid., pp. 217, 221. 

'Ferry, pp. 441, 465. 490. SU- 

* Bland, Colonel Dismounted, in Win. and Mary Quarterly, vol. 19, p. 33. 
'^ Ibid., p. 34. ^ Ibid., pp. 37, 38. 



572 POLITICAL SCIENCE QUARTERLY [Vol. XXXI 

natural right to local self-government had been confirmed by 
grants from the crown in the charters to the Virginia Company 
of 1606, 1609 and 161 2, by the ordinance of 162 1, and by the 
proposed charter of 1675.^ Once granted, "if what Lord 
Coke says in Calvin's case is true," such a right could not be 
altered or abrogated.^ 

(b) Thus, "in accordance with the original Constitution of 
Virginia," the king's commission to Loudon authorized him, 
with the consent of the assembly, to make any laws not repug- 
nant to those of England. 3 

(c) The king indeed reserved the right to disallow laws; but 
by the express language of the governor's commission, and by 
unbroken usage, disallowance took effect only from the time 
notice thereof was published in the colony, even when disallow- 
ance had been due to breach of the governor's instructions.'* 

(d) The governor's instructions were for his private guidance 
only, and were in no sense legally binding on the assembly. 
They were not public instruments, nor were their contents known 
except in part. Never having been promulgated, they could not 
have the force of law without violating the fundamentals of the 
British constitution, nor did the king intend them for more than 
a guide to the governor in the exercise of his discretionary 
powers. 5 If the governor violated his instructions, it was a 
matter for him to settle with his royal master.^ But the fact 
that he had rendered himself liable to punishment, did not in- 
validate his signature. 7 Granting in general that the king's 
instructions should be respected, still grave and unforeseen 
emergencies might make instant action imperative, and hence 
lawful.^ Previous governors had assented to laws in violation 

•Respondents' Brief, pp. 225-32; Bland, /oc. cit., pp. 35, 36; Perry, p. 495. 
Henry's Henry, I, 40. 
^ Bland, loc. cit., p. 37. 
■■' Respondents' Brief, p. 263. 
* Tbid., pp. 255, 263. 

*Bland, loc. cit., p. 3S; R. H. Lee, in Campbell, p. 513. 
"Perry, p. 521. 
'Bland, loc. cit., pp. 38-40. 
^Bland, Letter, p. iS; Carter, Letter, pp. 6-7; Campbell, p. 510; Perry, p. 467. 



No. 4] THE PARSON'S CAUSE 573 

of the letter of their instructions. Sometimes they had been 
reproved and the laws disallowed ; sometimes the laws had been 
confirmed. But never had laws thus disallowed been declared 
void ab initio. The very fact that governors had been sharply 
reproved for violating their instructions showed that the laws 
thus assented to were not mere nullities.' 

(e) The law of October 12, 1758, had been regularly passed, 
and assented to by the governor in due form. It was not dis- 
allowed until August 10, 1759, and notice was not received un- 
til June 27, 1760. "Till this Time therefore it was a good and 
valid Law in the colony, and the Inhabitants obliged to conform 
to it as such nor could any one justify the acting contrary 
to it." ^ 

(f ) The Council's disallowance of the Act was in the regular 
form, and did not expressly or by implication declare the law 
void ab initio? 

(g) The question of the invalidity of the Act because of its 
alleged injustice was not " pertinent to the present Question."'* 
The Legislature was the judge of the justice of its laws; other- 
wise the colonists were not free men.s As a matter of fact, 
however, the law was not unjust. The emergency entirely jus- 
tified it. It was general in terms, and did not apply specifically 
to the clergy. Furthermore, at two pence a pound, the salaries 
of the ministers were generously above the average of past 
years, and larger than it had ever been intended they should be.*" 

' Bland, /of. cit., pp. 40-41. This is an important point. Governors had con- 
stantly violated their instructions. (Greene, Provincial Governor, pp. 164-165.) 
Instances of signing laws contrary to instructi6ns appear in Acts Privy Council Colon- 
ial, III, 343, 617; IV, 59, 256, 308, 449, 488-9, 674, especially no. 155; Virginia 
Laws of 1748, V, 38-9, 50, 59, 215, 251, 395, 397, 577, 580, 583, 586; Archives 
of the State of New Jersey, ist. Ser., X, 43; Mass. Acts and Resolves, II, 127, 593; 
Journal Va. House of Burgesses, 1758-1761, p. 285. A particularly significant case 
is in Cal. State Papers, Col., 1661-1668, p. 759. 

'Respondents' Brief, p. 264. 

^ Ibid., p. 268, quoting the order; R. II. Lee, in Campbell, p. 513. 

* Respondents' Brief, p. 267. 
- ° Perry, p. 495. 

8 Bland, Letter, p. 14 ff; Carter, Letter, pp. 5, 42, 51; Respondents' Brief, pp. 
237-238. 



574 POLITICAL SCIENCE QUARTERLY [Vol. XXXI 

These arguments bring out clearly the logical steps by which 
the Two-Penny Cases led back to fundamental constitutional 
issues. Since the Act of 1758 could not have been affected by 
an ordinary disallowance, its validity in May, 1759, depended 
solely on the original right of the governor and assembly to pass 
it. This in turn involved the question whether the king's will 
as expressed in his instructions to the governor constituted a 
fundamental limitation on the legislative power of the governor 
and the assembly, a limitation, that is, of such a nature as to 
render null and void all actions which transgressed it. In the 
absence of clear precedents, this point could be determined 
only by a choice between radically different theories as to the 
source and nature of the assembly's legislative power, and of 
the extent of the governor's discretion. 

In every one of the court decisions against them, the clergy 
naturally felt that public opinion, prejudice against the estab- 
lished church, official pressure, personal animosities, and selfish 
interests were arra}'ed against them.' Futhermore, in yielding 
to political considerations, and refusing a decision on the merits 
of the case, it was felt that the Privy Council had been guilty 
of a breach of faith. - 

For us, the fact that the highest court of appeals avoided 
pronouncing on the constitutional question involved, robs the 
whole controversy of some of its interest. It is clear that the 
Council were in an embarrassing position. Undoubtedly they 
would have preferred to declare the Two-Penny Act invalid. 
But entirely apart from the political dangers of such a step, it 
is difficult to see how, on strictly legal grounds, they could have 
done so. Winthrop v. Lechmere had, it is true, asserted their 
right to declare a colonial law void from the beginning if it 
transcended charter limitations.^ But it had never been estab- 
lished that an instruction to a governor was at all comparable 
to a charter limitation on the legislature. On the other hand, 
the principle that a colonial law was valid until its disallowance 
was made known was a long-established one. 

' Perry, pp. 469, 477. 479. 481-2, 484, 496-7- 

''Perry, pp. 520-521. 

^2 Mass. Mist. .Soc. Coll, I, 8, 137. Thayer, Cases on Constitutional Law, I, 34. 



No. 4] THE PARSON'S CAUSE 575 

It is difficult therefore to avoid the conclusion that the Vir- 
ginia courts were entirely justified in deciding as they did. 
Only by declaring the law of 1758 void from its passage as 
violating a higher law — the king's instructions, and natural jus- 
tice — could they have decided otherwise ; and it was certainly 
too early to expect that judges would do this as a matter of 
course. 

The present doctrine of the power of courts to declare a law 
unconstitutional, rests on three assumptions : 

First, that there is a distinction between ordinary and funda- 
mental law. The power of the legislature is not absolute, but is 
limited by the fundamental law. 

Second, when the legislature transcends the limits set to its 
powers by the fundamental law, its action is null and void, and 
no one is bound thereby. 

Third, whenever in the ordinary course of administering jus- 
tice, the courts encounter an apparent conflict between an ordi- 
nary act of the legislature and the fundamental law, they not 
only may but must consider and decide whether the ordinary 
law can be reconciled with the fundamental law. If they believe 
that no reconciliation is possible, it is their right and their duty 
to disregard the ordinary law entirely, deciding the case before 
them in all respects as if it had never existed. 

In essence these three principles are clearly discernible in the 
Two-Penny Cases. 

As to the first, it was asserted that the legislative power of the 
Virginia assembly was limited by the king's instructions and by 
the laws of natural justice. 

Second, it was argued in so many words that the pretended 
law of 1758 was from the moment of passage null, void and no 
law at all, because in passing it the legislature violated both 
royal instructions and natural equity. Therefore no citizen was 
bound to obey it, nor could any official plead it in justification 
of any of his acts. 

Third, the courts were asked to recognize and act on both of 
these principles. It was insisted that they should take notice of 
the conflict between the act of 1758 and fundamental law, as 
expressed in the instructions and natural equity. And they 



-j6 POUTICAL SCIEXCE QUARTERLY [Vol. XXXI 

were urged to decide cases as if the law of 175S had never 
existed. 

The most significant sentence in Otis's speech on the Writs 
of Assistance was the declaration that " An act against the 
Constitution is void ; an act against natural equit}- is void." - 
These were substantially the points raised in the Virginia cases 
also. In both instances, the judges ignored the natural justice 
plea ; but the fact tliat it was advanced is another indication of 
the current belief that men had natural rights which the legis- 
lature might not lawfully violate. The mere fact, too. that 
good lawyers seriously urged the courts to disregard an act of 
assembly is interesting. It is significant that one jur)-, one 
bench of justices, and four of the ablest judges of the general 
court actually decided that the Act of 175S had never been law. 
Of course the idea that courts might, and should, disregard a 
law as unconstitutional was not present in men's minds with any- 
thing like the clearness which it assumed a generation later. 
But in spite of that, these cases desene to be considered along 
with Winthrop :•. Lechmere, and the Writs of Assistance Case 
as helping to illustrate the long and gradual process by which 
the American doctrine of judical review took shape. 

The Two-Penny Cases further find a place in the historj' of 
the long struggle for a greater degree of colonial legislative 
independence. For years American assemblies had been assert- 
ing rights analogous to those of Parliament. Just as the king 
could make laws for England only with the consent of Parlia- 
ment, so it was felt he could legislate for the colonies only with 
the consent of the local assemblies. Any limitation on the 
freedom of action of the representatives of the people was re- 
sented and resisted. The Virginia assembly was not alone in 
refusing to recognize the king's right to bind them directly by 
instructions to his governors. The issue came up at various 
times in other colonies, and the legislative bodies regularly 
refused to yield the point.^ 

■ John Adams, Works, II, 522. 

* Hutchinson, History of Massachnsetts Bav, III, 342. Ac important case in Penn- 
svlvatia is cetaiJeQ in 5 Fa.. Statutes at Large, p. 692 ff. Of New Jersey it is said 



No. 4] THE PARSOX'S CAUSE ryy 

The controversy over the act of 1758 thus deserves a place 
in the study of the pre-revolutionary period, but not primarily 
because it illustrated the presence of a seditious and rebellious 
spirit. Its real significance lies in the fact that for six critical 
years it helped to bring the people of Virginia face to face with 
fundamental questions. The legislative freedom of their as- 
sembly was imperiled. This made necessary a clear statement 
and a closely reasoned defense of the American view of the 
constitutional place of the colonies in the Empire ; and in that 
work Patrick Henry's speech was far less significant than the 
widely read pamphlets of Carter and Bland. On a small scale, 
the whole episode illustrates the clash of political theories which 
lay back of the American Revolution. The arguments by 
which the colonists defended the law of 1758 were exactly the 
same as those on which they based their resistance to king, 
ministry and Parliament. The principles on which they relied 
were the ones on which they founded their whole political sys- 
tem. The entire controversy, like so many other incidents in 
colonial history, has been too exclusively regarded as a sign 
of growing irritation on the part of the colonists. Its import- 
ance as an incident in the attempted working-out of a new im- 
perial system has been too largely overlooked. 

Arthur P. Scott. 

UNivERSiTi' OF Chicago. 

" the instructions represent only the ideas of the home government. They were 
absolutely binding, indeed, upon the royal appointees, but their binding force, while 
generally acquiesced in, was never admitted as absolute by all the colonists.'' Tan- 
net, E. P., The Province of New Jersey, p. 150. 



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